Reporters Comm. for Freedom of the Press v. FBI, No. 17-1701, 2019 WL 1003627 (D.D.C. Mar. 1, 2019) (Contreras, J.)
Re: Request for records relating to FBI's impersonation of documentary filmmakers and film crews
Disposition: Denying defendant's motion for partial summary judgment; granting plaintiff's motion for partial summary judgment
- Exemption 7, Threshold: "The Court finds that Defendants have made the threshold showing required under Exemption 7." "The FBI is a law enforcement agency, . . . and 'its decision to invoke exemption 7' is accordingly 'entitled to deference[.]'" "And the parties do not dispute that the impersonation of documentary filmmakers and film crews is a law enforcement technique." "The Court agrees with the FBI's justification that any investigative record related to the use of the technique would necessarily have been compiled for a law enforcement purpose." "And to the extent any records sought as part of Item 7 would not be investigative records, such records would still be akin to 'techniques[ ] and procedures for law enforcement investigations . . . .'"
- Exemption 7(E) Glomar: "The Court first reviews whether the impersonation of documentary filmmakers is a technique generally unknown to the public." "Because the technique is publicly known, the FBI's Glomar response declining to acknowledge the existence or absence of records relating to it under Exemption 7(E) fails at the first step and the Court need not address whether unknown techniques and procedures are categorically protected under Exemption 7(E)." "The Court next reviews whether revealing the existence or absence of records relating to the impersonation of documentary film workers in other contexts than the investigation of the [situation at issue] could 'reduce or nullify' the technique's effectiveness." "The Court concludes that it would not, and therefore that the FBI's Glomar response is inappropriate even under that broader standard." "Revealing that the FBI does not have any responsive records would conclusively establish that the FBI has not used the technique outside of . . . investigation [at issue] . . ., which might well 'embolden some criminals to continue ongoing criminal activity[.]'" "And revealing that the FBI has responsive records would establish that it has used the technique at least once more, suggesting that the . . . standoff investigation was not an isolated, one-off case." "But given the information already publicly available to criminals, this would not reduce or nullify the effectiveness of the technique when it is actually used."